Fearing for Your Life

Most of the commentary on the Trayvon Martin case has focused on the growing mountain of evidence suggesting that shooter George Zimmerman, far from acting in “self defense,” was the instigator of the confrontation between the two late last month. But I keep coming back to a slightly different question: Are we really supposed to believe that this armed 28-year-old man was afraid for his life in a confrontation with a barely-17 boy who he outweighed by 100 pounds, at 7 o’clock in the evening, with many homes full of people a few dozen yards away? Because even if we ignored all the evidence and assumed Trayvon Martin had been the aggressor, Zimmerman’s decision to shoot his supposed attacker would only be protected by Florida’s now-notorious “Stand Your Ground” law if he had a reasonable belief that it was “necessary to do so to prevent death or great bodily harm to himself … or another.”

Some personal context here: About a year ago, walking home pretty late at night, I was assaulted—an attempted mugging—by not one but three teens about Trayvon Martin’s age. I wasn’t armed, and I certainly didn’t have Zimmerman’s 100-pound advantage over any of them. I am not anyone’s idea of a badass by any stretch: An unrepentant wonk in mediocre physical shape who had never been in a real fight in his adult life. Nor am I possessed of any extraordinary physical courage—ask my girlfriend how long it took me to work up the nerve to do a cliff jump if you want a chuckle sometime. But for all that, there was no time during the whole encounter when I feared for my life. I did, to be sure, fear a somewhat worse ass-kicking than I ended up having to endure, and was lucky to end up with only a few cuts and bruises. (I had the good fortune of a neighbor who, hearing a cry for help, opened the door to see if I needed help, rather than making a phone call and waiting—and I’m a little surprised not to see anyone remarking that there seems to be a bit of a Kitty Genovese aspect to the Martin tragedy.) But nothing about the circumstances suggested these (seemingly unarmed) kids were prepared to kill me over a little cash and a cell phone, and while I certainly felt entitled to fight back (as I did), it would never in a million years have occurred to me that lethal force was in order.

You always want to give the benefit of the doubt to a victim, who you can hardly expect to engage in perfectly cool rational deliberation in the face of an assault, but surely there are circumstances where the use of some force in self-defense is justified, but lethal force isn’t, at least as a first alternative. Even when someone “stands their ground,” studies suggest that when a gun is drawn for defensive purposes, an attacker will almost always break off an assault after a threat or a warning shot. So supposing we actually believed Zimmerman’s unbelievable story, could it have been remotely reasonable for him to think lethal force was necessary to defend himself from imminent death or grave bodily harm? He had no hope of holding the boy off for a few minutes until someone else arrived? No “I’ve got a gun” or “I’ll shoot” against an unarmed opponent? Maybe there’s some story he could tell at trial that would at least get you to reasonable doubt, but I don’t see why a jury would be forbidden from concluding that Zimmerman’s response was so wildly disproportionate to the threat that no reasonable person could regard it as necessary, even if they believe Martin threw the first punch. Not to be flip about it, but fistfights happen all the time—and I’ve got to assume that killing the guy who started it would not be a reasonable or justifiable resolution to the large majority of them.

142 responses so far ↓

“But could there be a scenario where he–wildly inappropriately–followed this guy, and brandished his gun, and then much to his surprise, the teenager tried to wrestle the gun away, and in the ensuing struggle, he got shot?”

That wouldn’t be self defense. Brandishing a gun on someone is assault – pointing a gun at someone is an implied threat to use it on them. So had Zimmerman started out by pointing his gun at Martin, and then Martin got shot trying to disarm him, Zimmerman would be at fault. In that scenario Martin would legitimately be defending himself – and you can’t claim self defense when someone is defending themselves against your assaulting them.

It seems fairly clear, especially given the girlfriend’s account of their conversation, that Zimmerman initiated a fight with Martin. If that is the case, his ability to claim self-defense is greatly diminished. Even in a state with such horrible self-defense laws as Florida.

Cops aren’t lawyers. If there is “reasonable doubt” that’s for jurors to decide.

When there’s a dead kid armed with Skittles shot by a convicted felon, and witnesses who heard cries for help, and what appears to be signs of witness tampering by the police, well, this is why we have the FBI.

The police do have to make a call on the scene and it seems they made the right one. Dead kid armed with a bag of skittles? Yes. Eye witness who corroborated Zimmerman’s version of events–i.e. that Martin was on top of him punching him in the face and refusing to stop even after he repeatedly cried out for help? Yes to that one too. Did Zimmerman create the situation and deserve an ass bearing? Possibly, but determing such things is what investigations are for. There is no need to immediately arrest the guy if you have reason to doubt his guilt.

As for the gang analogy, that just strikes me as silly on multiple levels. Stand Your Ground laws have been used by unsavory characters, but so what? I still prefer a legislative arrangement that puts the burden of proof on the government and not the person who engaged in a self defense act. I find it bizarre that, in this world of mandatory sentencing, rampant plea bargaining designed to pressure suspects into foregoing their right to a trial, and prosecutorial misconduct (Ted Stevens rest in peace) that so many people want to make it easier for the DA and tougher on the average joe. Nuts.

Let me paraphrase what you are effectively saying: “You know, that black guy *could have* put the whammy on the white one, or maybe crossed his eyes at the guy holding the gun and scared him so much that his only logical response was to SHOOT THE UNARMED BOY.””

Megan has amazingly slipped farther into the right-wing zone in the past couple of years. I can’t imagine what she’ll be like in a few more years, but I know that in the next GOP administration she’ll go full, ah, ‘make the trains run on time’ mode, if you know what I mean.

The gang thing is not just an analogy: it actually happened: there was a shootout between two rival gangs, a kid was killed in the crossfire. They all got off under SYG: BOTH sides of the shootout all claimed they were defending their life.

SYG is not conventional, affirmative self-defense. It’s actual immunity, with an extremely low bar to claiming it and having that claim succeed. It requires no burden of proof at all: merely stating the claim that you felt justified in shooting to kill for some rational reason. You don’t need to establish that that reason is true, actually happened, was probable or any other conventional burden of proof. Only conclusive evidence that you lied about the specific act that you felt threatened you can overcome it.

And even that is dicey. In one SYG case, a man stabbed the other in the back, killing him. It was caught on video. His claim was that the other man (a car radio thief that he was actively pursuing) made a motion that he interpreted as a potential stabbing motion. The thief’s hands were empty: he was just flailing. He had an unopened pocketknife in his pocket.

The case was dismissed. That’s how low the bar is: even when there IS video of the event, a person can just claim that just about any movement at all from the other person was a potentially lethal threat.

You raise some very good points and I am prepared to concede that Stand Your Ground laws are an imperfect solution to the problem of protecting people engaged in an act of self defense from wrongful prosecution. But what then is the alternative? I suppose the existing legislation could be refined, but I still feel strongly that returning to Duty to Retreat laws would be a terrible mistake.

You point to instances in which criminals have used self defense laws to shield themselves from prosecution. I can point to plenty of examples of good people being convicted of serious crimes because Duty to Retreat laws:

1) Shift the burden of proof to the person engaging in an act of self defense.

2) Provide prosecutors with a hazy, subjective criteria they can manipulate to get a conviction.

Take the case of Dickey vs. South Carolina that was fortunately overturned last year. Dickey was a night watchman who was attacked by a man he had ejected from the property he was guarding. The man returned with a broken bottle in hand, presumeably to kill Dickey. The prosecutors argued that Dickey should have retreated, although no route of retreat was open to him. Perhaps the prosecutors imagined he could call to his starship in orbit to be beamed to safety. Dickey’s exoneration is good news story, but how many other people are languishing in prison because a prosecutor believed jumping out a window or climbing a fence was an appropriate response to a violent attacker?

The bottom line is that I am far more comfortable with self defense laws that force the police and the DA to do their jobs — i.e. prove that a person acted unreasonably and/or that they were never in serious jeopardy. Prosecutors have enough power as it is.

Will some bad guys get away? Absolutely, these laws will also protect innocent people from wrongful prosecution. Whatever happened to the sentiment that it is better that 10 guilty persons go free than one innocent suffer?

If your point is that he should have been arrested and then released when prosecutors decided they had isufficient evidence to convict because eye witness testimony corroborated Zimmerman’s claims then I fail to see what that would have accomplished. Perhaps it would have kept Al Sharpton out of Florida — probably a good thing from the perspective of most Floridians.

The police had the benefit of examining the physical evidence, interviewing Zimmerman, and talking with “John” (the eye witness to at least part of the fight between Martin and Zimmerman). They made the call that Zimmerman shouldn’t be arrested because he had someone on top of him pounding his face into the ground when he resorted to deadly force. It would seem that even with the bar set low at “proable cause” the decision made at the scene was an understandable one.

Did Zimmerman deserve to have his face rearranged? I have seen no evidence that he did anything other than act creepy. There is no evidence that he started a physical fight with Martin, only that he followed the young man and asked him what he was doing in the neighborhood. Rude? Absolutely. Paranoid? Yes. Worthy of a beatdown? Not in my opinion. Can it really be said then that he started the fight? If he did start it, I have not seen solid evidence to support the claim. He certainly put himself in a situation where an altercation was more likely, but that isn’t the same as provoking an attack.

If your point is that he should have been arrested and then released when prosecutors decided they had isufficient evidence to convict because eye witness testimony corroborated Zimmerman’s claims then I fail to see what that would have accomplished.

That’s a lot of presuming and projecting.

Local PD is apparently reticent even to make the standard probable cause assessment that they’d use for other incidents, and that that SYG supposedly permits for an arrest. No toxicology screen for Zimmerman, no concern to ID Martin, no apparent desire to do basic forensics: a cynic might suggest that they were looking to avoid anything that would force them into an investigation.

(You’ve already embarrassed yourself with your ignorance of the gang shooters who invoked SYG, but you seem intent on digging yourself deeper.)

There isn’t anything particularly libertarian about initiating [lethal] force. What Zimmerman apparently wanted to be was a cop – you know, one of those people ennobled by the power of the state to use lethal force.

Is it really necessary to detail the failings of the police and prosecutor? Are we libertarians to blame for that as well?

Eddington: “Whatever happened to the sentiment that it is better that 10 guilty persons go free than one innocent suffer?”

Nothing happened to it. But I just don’t think SYG well serves that objective, because it’s legally sloppy, thoughtless, and broad.

I agree there are a lot of cases in which people claiming self-defense have too high of a burden to meet in order to exonerate themselves. And there’s something deeply unfair about being attacked by someone, in a fight you didn’t pick, and then having, added to that, the state destroying your life trying to imprison you for defending yourself.

But a legal system has to balance those sorts of interests _somehow_. Sometimes people are blameless. But other times they very much overreact. And sometimes they outright kill someone unjustifiably and get away with it.

SYG doesn’t attempt to balance these interests very well at all, especially because the sort of immunity it invokes just isn’t appropriate for ambiguous, on-the-street confrontations where everyone sees things differently. The case for Castle is, again, so strong because it’s not ambiguous at all: someone either invaded your home or not, and the it’s the occupants that have the presumption of immunity in defending their home. Immunity is a very blunt, high bar. But the situation in Castle, a home invasion, justifies it.

With this case and most SYG cases, however, there’s huge ambiguity as to who has the “right” to “stand your ground.” If everyone in a situation does, that’s a huge, huge mess. And, at the very least, huge messes are probably best resolved by trials, as imperfect as they can be.

I don’t have any theoretical problem with the idea of lowering the burden of proof to an affirmative self-defense. And that would seem to address the problem without jumping to right to the most extreme solution, ignoring the cost of the opposite sorts of harms.

I should add, again, though, that standing your ground is, whatever the law says you are entitled to do, an extremely dumb, wrong-headed strategy. Every second you spend in a violent situation is one in which things can turn against you, no matter how much of an upper-hand you may think you have (machine gun vs. knife, pistol vs. skittles, whatever).

If you have a weapon, great: but the most sensible purpose of that weapon should still be for securing your escape, not defending your territory or “winning” a fight. Territory and property are worthless compared to your life.

This applies even to if someone breaks into your house, as weird as it may sound. There are many cases in which it would make sense to, as soon as you hear someone breaking in, jump out your own window. Immediately. Even if you’re fully armed. Again, this isn’t a moral or legal obligation. It’s about simple statistics: what actions are most likely to result in you not being killed or injured during a home invasion.

If more people took violence seriously, and put it in their heads that the second violence or the threat of it explodes, they should do anything they can to immediately escape, a lot more people would survive.

Why would we ever need a bullshit law like this in the first place? I think that we all have always and do have the right to defend ourselves. I believe I would be within my rights to shoot an intruder in my home in the middle of the night. I believe even if during the day, I would be within my rights to shoot if I felt threatened. But I also think there is nothing wrong with the inconvience of explaining yourself in the case that you just took another’s life. These obsurd laws, in my opinion are designed to create chaos and controversy. They are written by supposively Pro-gunowners organizations. As a gun owner, I know these laws do not protect my rights to gun ownership, they actually endanger it in the long run. But in the short run, what these laws do, is create such horror, that we have a conflict between Progun and Antigun groups and the memberships and donation flood in to the NRA, ALEC and others. These groups alliance is with the manufacturers and putting a gun in every hand in the country. They do not advocate responsible gun ownership. This tragedy is another example of these organizations total disregard for human life. This child was murdered. Zimmerman should be charged and let him have his day in court. I seriously doubt a jury of his peers will have any problem seeing this for what it is.

This is what drives me crazy about libertarians, like their anarchist, communist, etc, cousins.

The results of a system are shown — and then our genius says “well, those people aren’t True Believers”, as if the world cared about creedal fealty.

Let’s be clear: Stalin was not a good Marxist. Lenin was a piss poor Marxist himself. The Soviet Union never functioned properly upon Marxist principles. That is not a defense of Marxism — it’s fairly easy to argue that any attempt to create a Marxist state would actually create a non-Marxist totalitarianism.

The libertarians need to get it through their thick skulls — this isn’t a theological question about the purity of intention, but the practicality of implementing their system without making things worse.

This is always the excuse of the incompetent ideologue — and Marx himself would have called out these gullible fools.

If it is not (trivially) easy to convict someone for shooting dead an unarmed man on public ground, then the system is fundamentally broken somewhere.

The response to a threat must be proportionate to the threat to be justified, and individuals who choose to wield overwhelming force implicitly accept additional responsibilities. It’s why I can’t go buy a nuke to drop on my overly loud neighbour…

Your above thinking is as addled as Matt Taibbi and Jon Chait already have hilariously characterized in “get that dirt off your shoulder” blog postings. You are a cheaper, poor-man’s version of your supply-side predecessor, Veronique de Rugy. In your case, this statement couldn’t be more true, “The dilemma is especially acute in the political economic field, where wealthy right-wingers have pumped so much money to subsidize the field of pro-rich people polemics that the demand for competent defenders of letting rich people keep as much of their money as possible vastly outstrips the supply.”

If Sanchez had been carrying a gun when he was mugged he would have been justified in shooting them, not least because he ought not have to risk the result of their getting the gun from him. Would also have prevented the next mugging by the three, which undoubtedly took place not long after, though at great risk and cost to Sanchez, probably more than if he was not carrying a gun. But a rash of such public spirited acts might have reduced the ranks of muggers by considerably more than the number shot.

Anyway, I don’t get the enthusiasm for arresting Zimmerman, which the police were prohibited from doing if they thought he had a valid SYG claim. It’s not as if arresting him now would require extradition. Maybe they should have asked him for his clothes or a blood sample which, as it happens, there is no reason to think he would have not given to them. But despite Zimmerman’s extra 100 lb of fat the testimony they had was of Martin on top beating on Z when M was shot, and there was a busted nose and head to prove it. There’s no evidence I am aware of for Sanchez’s imagined flashing of the gun. (Odd that they didn’t look at the cellphone’s call log, odder still that it wasn’t ringing. But maybe the ongoing investigations will clarify this… )

I cannot see any way that Zimmerman would NOT be convicted for Murder not Manslaughter. It only requires two simple questions:

1. Why are you carrying a gun during Neighborhood watch?

2. Why did you leave your vehicle?

Both actions SCREAM escalation. The ONLY time that you carry a gun is if you are prepared to use it–not brandish it, not flash it, but to shoot someone with it. And there is absolutely NO reason for him to get out of his vehicle.

The only reasonable reason to pack a pistol and then to leave his vehicle is because he went out LOOKING for trouble.

The ONLY reason that Martin is dead is because of these two actions. Everything else is irrelevant. If you are going to carry a gun, then you have to be held to a higher standard.

I am not entering the debate about what should or should not have happened in this case. I am, however, interested in the the statement by Scott Burton about California and New York law that makes no sense to me: if someone who is larger than me attacks me with his fists, I think that I have every right to defend myself with whatever means come to hand be it knife or gun. Sure in an ideal world, two people could engage in a fist fight, one would win and the other would lose, and both people go home. But the truth is that people can be beaten to death by someone wielding their fists.

I thought Reasonable Doubt was something the prosecution aimed to eradicate … in a jury, via a trial. I didn’t know it was something the media had to eradicate in Megan McArdle in order for a trial to take place.

Muggers are hit-and-run attackers; if they don’t get your stuff by virtue of the first quick shock attack, they are not likely to continue, since the probability of injury to themselves or apprehension goes way up thereafter. There’s not a close parallel to this case.

An admirer of Matt T. Yeow! There’s more brains here than the entire graduating classes of every Ive League school…added up! Your readers, are a testament to your hard works, the amazing group of admirers who participate…and a dedication to something foundational to my beliefs:
99% of what people think are problems, are merely Symptoms…of a single problem; an example is all the political ‘problems’ being tirade about everyday – most all of them symptoms of one problem: political Corruption, embraced by a corrupt Congressional Duopoly.
…as my own contribution to ‘save the world’ for my daughter, I formulated a list of ten laws/actions/whatever – which I believe will end 99% of the corruption on The Hill, ( I am not a writer…) and I posted them on a site I built in 30 minutes – unedited (argh, squared…I’m such a lazy hero…) the site above has one version, and another has I believe a slightly edited one. I would Love to see what a team of writers, say my dream-team Sanchez-Taibbi, could do with writing about an actual solution so easy as the number ten. The second site:http://www.occupycongress.webstarts.com
Thank you, for your dedication to the…”
Evolution of Civilization!
Respectfully Yours, I am,
Chard

By now every one has probably seen the video of Zimmerman at the police station. He does not appear to have been hurt, nod defensive marks. For what ever it is worth because it is Nancy Grace but she had a conversation with the coroner and other than the gun shot wound there were not other marks on the vicitm.

(You’ve already embarrassed yourself with your “ignorance of the gang shooters who invoked SYG, but you seem intent on digging yourself deeper.)”

I never meant to imply that I have complete knowledge of every case in which SYG laws have been misapplied or even applied correctly with seemingly unjust results. You, however, are obviously an astute legal scholar whose unapproachable knowledge should silence all debate on the issue.

Why would a toxicology report have been necessary if Zimmerman exihibited no signs of intoxication? As for forensic evidence, have you been privy to information that the general public has yet to see?

The bottom-line is that the only useful eye-witness corroborates the shooters version of events — i.e. that Martin was on top of Zimmerman, beating him. The details of what happened immediately prior to the altercation remain obscured, but the physical evidence (what is publicly known of it) seems to support Zimmerman’s claims. Indeed, his semi-automatic pistol failed to chamber a second round after his first shot suggesting that there may have in fact been a struggle for the firearm.

But of course you’re going to get your way, apparently Zimmerman will be charged with an as yet unidentified crime later today. That fact alone should encourage to continue offerring up annoying, pedantic analyses.

and we have all seen the real condition of GZ at the police station. No blood, no broken nose, no injuries at all that would confirm a struggle for life of an unarmed teen with a gun toting authoritarian pumped full of adrenaline during his stalking chase of his ‘suspect’.

Shano: I agree that not all the facts have come out yet. That said, the only credible eye witness testimony I am familiar with came from the witness identified only as “John” who’s story support Zimmerman’s account. The kid’s testimony doesn’t strike me as reliable. His initial account supported Zimmerman. Later his mother claims he didn’t really see what happend and that the police had pressured him to offer up information. I haven’t heard about this latest twist, but it only supports my view that the kid’s testimony is useless for either side.

Good day! This is kind of off topic but I need some help from an established blog.
Is it hard to set up your own blog? I’m not very techincal but
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Cheers